The Power of Perspectives

Copyright fees at York: Federal Court rejects fair dealing

A lengthy copyright battle, which a Federal Court judge compared to the chain of events that sparked World War I, between York University and a rights holder consortium has resulted in a blow for the fair dealing exemption.

The decision, says Canadian copyright expert Michael Geist, “moves in precisely the opposite direction with restrictive language that other courts and the Copyright Board have rejected.”

The case goes back to 2010, when the Canadian Copyright Licensing Agency (also known as Access Copyright) proposed to the Copyright Board of Canada that post-secondary institutions be charged $45 per each full-time employee (or equivalent) per year. That represents a major hike from the previous $3.38 annual fee, topped up with a $0.10 per page royalty, that had applied up to 2010.

Not long after accepting the new tariff, York University — and their Keele Copy Centre — simply chose to ignore the fees.

Justice Michael Phelan, with dramatic flair, writes: “The events at Keele seemed to have the same impact in the context of the Access-York relationship as the shot fired at Sarajevo in 1914.”

In response Access Copyright dispatched staff to do a spot check at Keele. They found that some 10-15 professors had been copying course material — subject to copyright — without paying any fees. The copyright consortium has since tried to enforce payment of the tariff. That was the main issue at play in the Federal Court case.

York, however, fired back with their own claim: That fair dealing permits the copying of that coursework for educational purposes.

“If York did not copy any works in Access’s repertoire, if it obtained proper permission to copy those works, or if the copying was exempt by law – the fair dealing defence and counterclaim – then the tariff would not be applicable,” Phelan writes. “Absent these conditions, the tariff is mandatory.”

The court ultimately held that the university did little to ensure that the dealing was, in fact, fair — ruling that its guidelines were vague and that it had few safeguards to ensure that copying of copyrighted material was limited or circumspect, or that actions were taken to avoid it.

While the court noted that a litany of Supreme Court decisions have highlighted the importance of fair use, it also remarked that “importance does not equate with exclusivity or dominance. The analysis/fairness assessment requires a balancing of interests.”

Geist, Canada Research Chair in Internet and E-commerce Law at the University of Ottawa law school, is predicting a successful appeal.

“I think the judge’s interpretation of fair dealing run counter to multiple Supreme Court of Canada decisions on the issue,” he wrote to CBA National.

“The Supreme Court has called for a broad, liberal interpretation of fair dealing and this decision moves in precisely the opposite direction with restrictive language that other courts and the Copyright Board have rejected,” he argues. Previous Supreme Court decisions have upheld educational institutions’ right to fair dealing, he adds. This decision, however, could lead to “huge new costs for students and lost flexibility for teachers.”

Geist points to two top court decisions — Alberta v. Access and SOCAN v. Bell — where it has shown flexibility in its test for fair use, specifically when gauging the impact on the proportion of copyright material used without paying.

In SOCAN, the Supreme Court ruled that the amount of the copyright music that is provided tariff-free — not the frequency with which it’s played, or the selection — is relevant in deciding fair dealing.

“This [amount of dealing] factor should be assessed by looking at the proportion of the preview in relation to the whole work, not the aggregate amount of music heard through previews,” the court writes.

It came to a similar decision in Alberta: “Having found that teachers only copied short excerpts of each textbook, the Board was required to determine whether the proportion of each of the short excerpts in relation to the whole work was fair. This factor is not a quantitative assessment based on aggregate use, but an examination of the proportion between the excerpted copy and the entire work.”

In the York case, however, the Federal Court considers it “relevant to consider the aggregate volume of copying by all post-secondary institutions that would be allowed if the Guidelines or similar policies were adopted.”

It further chastises York for providing little explanation for how it determined which threshold of copying — say, 10 percent — of a work was acceptable.

It largely disregards the notion that the university has much leeway to perform duty-free copies at all.

“This is circular reasoning amounting to nothing more than saying that copying for educational purposes is fair because it is copying for the purposes of education,” Phelan writes of Ryerson’s arguments.

The whole question might become moot. The federal government is expected to launch a study of Canada’s copyright regime, which will likely lead to major reforms, sometime this year.

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